Sunday, 18 September 2016

Is the EU planning an army - and can the UK veto it?

Steve Peers

Is the EU planning to create an
army? If so, can and should the UK veto it - up until Brexit? The issue has been
much debated in recent days. But this is the classic example of a debate that has
created much heat but shed little light. The purpose of this post is to clear
up misunderstandings. In short, the recently announced plans do not amount to an EU army –
and so the UK is not able to veto the EU’s plans.

Background

Initially, the EU’s foreign
policy had little to do with defence, in deference to Irish neutrality and the
UK’s strong support for NATO. This has changed gradually over the years as the
Cold War ended, US troops left Europe, and the parallel non-EU defence organisation
(the Western European Union) was wound down.

Since the Treaty of Lisbon, the
rules on EU defence policy are set out in Articles 42-46 of the Treaty on
European Union (TEU). I have included the full text of these Articles in an
Annex to this post. The starting point (Article 42(1)) is that the EU has an ‘operational
capacity’ to use on non-EU missions ‘for peace-keeping, conflict prevention and
strengthening international security’, consistently with the UN Charter, as
explained further in Article 43. These actions shall use ‘capabilities provided
by the Member States’, meaning that they each retain their own armed forces. There’s
a reference to using ‘multinational forces’ too (Article 42(3)), but it’s clear
that it’s optional both to set up such forces and to contribute them to support
the EU defence policy.

However, there is also a
long-term objective. Article 42(2) TEU says that the EU includes ‘the progressive
framing of a common Union defence policy’, which ‘will lead to a common defence’.
But this policy must ‘respect’ the obligations of those Member States who are
parties of NATO, and be ‘compatible’ with NATO policy. Equally it ‘shall not prejudice
the specific character’ of some Member States’ defence policy: this is an
oblique reference to neutrality. (Six Member States are neutral).

Most importantly, it will only
happen when the European Council (consisting of Member States’ presidents and
prime ministers) ‘acting unanimously, so decides’. That decision then needs to be ratified by
Member States ‘in accordance with their respective constitutional requirements.'For the UK, that would require a
referendum, as set out in section 6(2) of the European
Union Act 2011. It would need a referendum in Ireland too, since Article
29(4)(9) of the Irish
Constitution rules out Irish participation in an EU common defence, and the
Irish Constitution can only be amended by referendum. Other Member States may also have stringent constitutional
requirements to this end.

What happens in the meantime,
before this rather mythical notion of a common defence is achieved? Article
42(3) says that Member States must ‘undertake progressively to improve their
military capabilities’. A ‘European Defence Agency’ (see further Article 45) is
set up to this end. It’s possible for a group of Member States to take on an
EU-wide task (Article 42(5), as set out in more detail in Article 44). Member
States have an obligation of ‘aid and assistance’ to each other, if one of them
is ‘the victim of armed aggression’, in accordance with the UN Charter (Article
42(7)). Finally, certain Member States which meet higher standards as regards
their ‘military capabilities’ and ‘which have made more binding commitments to one another in this area with a view to the most
demanding missions shall establish permanent structured cooperation’
within the EU (Article 42(6), referring to Article 46).

New EU plans

What are the EU’s new military
plans? Some newspapers and commentators have referred to plans for an ‘EU army’,
which at first sight implies a ‘common defence’. In turn, the UK’s defence
minister is quoted as saying he would veto
these plans, as long as the UK is part of the EU.

As we saw above, any Member State
can indeed veto an EU ‘common defence’. But still, it’s striking to hear a supporter
of the Leave side acknowledge that the UK can
veto an EU army, since many of them suggested during the referendum campaign
that this scary prospect was unavoidable if the UK remained part of the EU. Having
said that, there’s a misunderstanding here. According to the information
available, the proposal is not to create an EU army, and
therefore the UK can’t veto it.

In fact, the ‘State of the Union’
speech
by Commission President Juncker proposed four things: a joint headquarters for
EU military missions; common procurement to save on defence costs; a Defence
Fund for the EU defence industry; and the development of ‘permanent structured
cooperation’, as referred to briefly above (and see below). It did not propose merging armies to create a common army. Some press
reports suggest that the recent EU summit discussed a ‘common military force’,
but the ‘Declaration’ and ‘Road Map’ issued
after the summit make no mention of such a thing.

So what exactly is ‘permanent
structured cooperation’? It’s described in Article 46 TEU, as well in as a
Protocol attached to the Treaties. Article 46 sets out the process: it’s set up
by willing Member States only. Any unwilling Member States can simply choose not
to take part. There’s no veto on setting it up, but that’s because
participation is voluntary. Member States can join once it’s underway – and leave
at any time, with no conditions attached. If more EU policies were this
flexible, EU participation would be less controversial – although in a
post-truth world some people would undoubtedly deny that those policies were
flexible in the first place. (If the current EU plans go ahead, I expect to
read somewhere that the soldiers are inspired by Hitler, and armed with Muslamic
ray guns).

As for the substance of ‘permanent
structured cooperation’, it’s explained fully in the Protocol (also reproduced
in the Annex). The criteria to join are
development of defence capacities, and in particular supplying forces to support
EU operations within a short period. Participating countries must aim to
achieve approved levels of domestic spending, align their equipment and
operability of their forces, fill capability gaps, and take part in joint
procurement. That’s significant – but that’s it. It’s not an EU army.

Conclusions

Plans can always change. But the recent
Commission plans, and the EU summit declaration, don’t amount to an EU army. And if there’s no EU army, the UK can’t veto one. It’s arguable whether a veto threat is a good
negotiating strategy; but it’s indisputable that an empty threat is simply
ridiculous.

A more rational approach to the
issue would be to acknowledge (as a number of calmer voices on the Leave side
have advocated) that the UK and the EU might well benefit mutually from
continued defence and foreign policy cooperation after Brexit. In that light,
the best way for the UK to spend its remaining time as an EU Member State as
regards defence issues is to offer constructive criticism of the EU plans – and
align that with sensible proposals for how post-Brexit EU/UK cooperation could
go forward in this field.

1. The common security and defence policy shall be
an integral part of the common foreign and security policy. It shall provide
the Union with an operational capacity drawing on civilian and military assets.
The Union may use them on missions outside the Union for peace-keeping,
conflict prevention and strengthening international security in accordance with
the principles of the United Nations Charter. The performance of these tasks
shall be undertaken using capabilities provided by the Member States.

2. The common security and defence policy shall include the progressive framing
of a common Union defence policy. This will lead to a common defence, when the
European Council, acting unanimously, so decides. It shall in that case
recommend to the Member States the adoption of such a decision in accordance
with their respective constitutional requirements.

The policy of the Union in accordance with this Section shall not prejudice the
specific character of the security and defence policy of certain Member States
and shall respect the obligations of certain Member States, which see their
common defence realised in the North Atlantic Treaty Organisation (NATO), under
the North Atlantic Treaty and be compatible with the common security and
defence policy established within that framework.

3. Member States shall make civilian and military capabilities available to the
Union for the implementation of the common security and defence policy, to
contribute to the objectives defined by the Council. Those Member States which
together establish multinational forces may also make them available to the
common security and defence policy.

Member States shall undertake progressively to improve their military
capabilities. The Agency in the field of defence capabilities development,
research, acquisition and armaments (hereinafter referred to as “the European
Defence Agency”) shall identify operational requirements, shall promote
measures to satisfy those requirements, shall contribute to identifying and,
where appropriate, implementing any measure needed to strengthen the industrial
and technological base of the defence sector, shall participate in defining a
European capabilities and armaments policy, and shall assist the Council in
evaluating the improvement of military capabilities.

4. Decisions relating to the common security and defence policy, including
those initiating a mission as referred to in this Article, shall be adopted by
the Council acting unanimously on a proposal from the High Representative of
the Union for Foreign Affairs and Security Policy or an initiative from a
Member State. The High Representative may propose the use of both national
resources and Union instruments, together with the Commission where
appropriate.

5. The Council may entrust the execution of a task, within the Union framework,
to a group of Member States in order to protect the Union's values and serve
its interests. The execution of such a task shall be governed by Article 44.

6. Those Member States whose military capabilities fulfil higher criteria and
which have made more binding commitments to one another in this area with a
view to the most demanding missions shall establish permanent structured
cooperation within the Union framework. Such cooperation shall be governed by
Article 46. It shall not affect the provisions of Article 43.

7. If a Member State is the victim of armed aggression on its territory, the
other Member States shall have towards it an obligation of aid and assistance
by all the means in their power, in accordance with Article 51 of the United
Nations Charter. This shall not prejudice the specific character of the
security and defence policy of certain Member States.

Commitments and cooperation in this area shall be consistent with commitments
under the North Atlantic Treaty Organisation, which, for those States which are
members of it, remains the foundation of their collective defence and the forum
for its implementation.

Article 43

1. The tasks referred to in Article 42(1), in the
course of which the Union may use civilian and military means, shall include
joint disarmament operations, humanitarian and rescue tasks, military advice
and assistance tasks, conflict prevention and peace-keeping tasks, tasks of
combat forces in crisis management, including peace-making and post-conflict
stabilisation. All these tasks may contribute to the fight against terrorism,
including by supporting third countries in combating terrorism in their
territories.

2. The Council shall adopt decisions relating to the tasks referred to in
paragraph 1, defining their objectives and scope and the general conditions for
their implementation. The High Representative of the Union for Foreign Affairs
and Security Policy, acting under the authority of the Council and in close and
constant contact with the Political and Security Committee, shall ensure
coordination of the civilian and military aspects of such tasks.

Article 44

1. Within the framework of the decisions adopted in
accordance with Article 43, the Council may entrust the implementation of a
task to a group of Member States which are willing and have the necessary
capability for such a task. Those Member States, in association with the High
Representative of the Union for Foreign Affairs and Security Policy, shall
agree among themselves on the management of the task.

2. Member States participating in the task shall keep the Council regularly
informed of its progress on their own initiative or at the request of another
Member State. Those States shall inform the Council immediately should the
completion of the task entail major consequences or require amendment of the
objective, scope and conditions determined for the task in the decisions
referred to in paragraph 1. In such cases, the Council shall adopt the
necessary decisions.

Article 45

1. The European Defence Agency referred to in
Article 42(3), subject to the authority of the Council, shall have as its task
to:

(a) contribute to identifying the Member States' military capability objectives
and evaluating observance of the capability commitments given by the Member
States;

(c) propose multilateral projects to fulfil the objectives in terms of military
capabilities, ensure coordination of the programmes implemented by the Member
States and management of specific cooperation programmes;

(d) support defence technology research, and coordinate and plan joint research
activities and the study of technical solutions meeting future operational
needs;

(e) contribute to identifying and, if necessary, implementing any useful
measure for strengthening the industrial and technological base of the defence
sector and for improving the effectiveness of military expenditure.

2. The European Defence Agency shall be open to all Member States wishing to be
part of it. The Council, acting by a qualified majority, shall adopt a decision
defining the Agency's statute, seat and operational rules. That decision should
take account of the level of effective participation in the Agency's
activities. Specific groups shall be set up within the Agency bringing together
Member States engaged in joint projects. The Agency shall carry out its tasks
in liaison with the Commission where necessary.

Article 46

1. Those Member States which wish to participate in
the permanent structured cooperation referred to in Article 42(6), which fulfil
the criteria and have made the commitments on military capabilities set out in
the Protocol on permanent structured cooperation, shall notify their intention
to the Council and to the High Representative of the Union for Foreign Affairs
and Security Policy.

2. Within three months following the notification referred to in paragraph 1
the Council shall adopt a decision establishing permanent structured
cooperation and determining the list of participating Member States. The
Council shall act by a qualified majority after consulting the High
Representative.

3. Any Member State which, at a later stage, wishes to participate in the
permanent structured cooperation shall notify its intention to the Council and
to the High Representative.

The Council shall adopt a decision confirming the participation of the Member
State concerned which fulfils the criteria and makes the commitments referred
to in Articles 1 and 2 of the Protocol on permanent structured cooperation. The
Council shall act by a qualified majority after consulting the High
Representative. Only members of the Council representing the participating
Member States shall take part in the vote.

A qualified majority shall be defined in accordance with Article 238(3)(a) of
the Treaty on the Functioning of the European Union.

4. If a participating Member State no longer fulfils the criteria or is no
longer able to meet the commitments referred to in Articles 1 and 2 of the
Protocol on permanent structured cooperation, the Council may adopt a decision
suspending the participation of the Member State concerned.

The Council shall act by a qualified majority. Only members of the Council
representing the participating Member States, with the exception of the Member
State in question, shall take part in the vote.

A qualified majority shall be defined in accordance with Article 238(3)(a) of
the Treaty on the Functioning of the European Union.

5. Any participating Member State which wishes to withdraw from permanent
structured cooperation shall notify its intention to the Council, which shall
take note that the Member State in question has ceased to participate.

6. The decisions and recommendations of the Council
within the framework of permanent structured cooperation, other than those
provided for in paragraphs 2 to 5, shall be adopted by unanimity. For the
purposes of this paragraph, unanimity shall be constituted by the votes of the
representatives of the participating Member States only.

PROTOCOL
ON PERMANENT STRUCTURED COOPERATION

ESTABLISHED BY ARTICLE 42 OF THE TREATY ON EUROPEAN
UNION

THE HIGH CONTRACTING PARTIES,

HAVING REGARD TO Article 42(6) and Article 46 of the Treaty on European Union,

RECALLING that the Union is pursuing a common foreign and security policy based
on the achievement of growing convergence of action by Member States;

RECALLING that the common security and defence policy is an integral part of
the common foreign and security policy; that it provides the Union with
operational capacity drawing on civil and military assets; that the Union may
use such assets in the tasks referred to in Article 43 of the Treaty on
European Union outside the Union for peace-keeping, conflict prevention and
strengthening international security in accordance with the principles of the
United Nations Charter; that the performance of these tasks is to be undertaken
using capabilities provided by the Member States in accordance with the
principle of a single set of forces;

RECALLING that the common security and defence policy of the Union does not
prejudice the specific character of the security and defence policy of certain
Member States;

RECALLING that the common security and defence policy of the Union respects the
obligations under the North Atlantic Treaty of those Member States which see
their common defence realised in the North Atlantic Treaty Organisation, which
remains the foundation of the collective defence of its members, and is
compatible with the common security and defence policy established within that
framework;

CONVINCED that a more assertive Union role in security and defence matters will
contribute to the vitality of a renewed Atlantic Alliance, in accordance with
the Berlin Plus arrangements;

DETERMINED to ensure that the Union is capable of fully assuming its
responsibilities within the international community;

RECOGNISING that the United Nations Organisation may request the Union’s
assistance for the urgent implementation of missions undertaken under Chapters
VI and VII of the United Nations Charter;

RECOGNISING that the strengthening of the security and defence policy will
require efforts by Member States in the area of capabilities;

CONSCIOUS that embarking on a new stage in the development of the European
security and defence policy involves a determined effort by the Member States
concerned;

RECALLING the importance of the High Representative of the Union for Foreign
Affairs and Security Policy being fully involved in proceedings relating to
permanent structured cooperation,

HAVE AGREED UPON the following provisions, which shall be annexed to the Treaty
on European Union and to the Treaty on the Functioning of the European Union:

Article 1

The permanent structured cooperation referred to in Article 42(6) of the Treaty
on European Union shall be open to any Member State which undertakes, from the
date of entry into force of the Treaty of Lisbon, to:

(a) proceed more intensively to develop its defence capacities through the
development of its national contributions and participation, where appropriate,
in multinational forces, in the main European equipment programmes, and in the
activity of the Agency in the field of defence capabilities development,
research, acquisition and armaments (European Defence Agency), and

(b) have the capacity to supply by 2010 at the latest, either at national level
or as a component of multinational force groups, targeted combat units for the
missions planned, structured at a tactical level as a battle group, with
support elements including transport and logistics, capable of carrying out the
tasks referred to in Article 43 of the Treaty on European Union, within a
period of 5 to 30 days, in particular in response to requests from the United
Nations Organisation, and which can be sustained for an initial period of 30
days and be extended up to at least 120 days.

Article 2

To achieve the objectives laid down in Article 1, Member States participating
in permanent structured cooperation shall undertake to:

(a) cooperate, as from the entry into force of the Treaty of Lisbon, with a
view to achieving approved objectives concerning the level of investment
expenditure on defence equipment, and regularly review these objectives, in the
light of the security environment and of the Union’s international
responsibilities;

(b) bring their defence apparatus into line with each other as far as possible,
particularly by harmonising the identification of their military needs, by
pooling and, where appropriate, specialising their defence means and
capabilities, and by encouraging cooperation in the fields of training and
logistics;

(c) take concrete measures to enhance the availability, interoperability,
flexibility and deployability of their forces, in particular by identifying
common objectives regarding the commitment of forces, including possibly
reviewing their national decision-making procedures;

(d) work together to ensure that they take the necessary measures to make good,
including through multinational approaches, and without prejudice to
undertakings in this regard within the North Atlantic Treaty Organisation, the
shortfalls perceived in the framework of the ’Capability Development
Mechanism’;

(e) take part, where appropriate, in the development of major joint or European
equipment programmes in the framework of the European Defence Agency.

Article 3

The European Defence Agency shall contribute to the regular assessment of
participating Member States’ contributions with regard to capabilities, in
particular contributions made in accordance with the criteria to be
established, inter alia, on the basis of Article 2, and shall report thereon at
least once a year. The assessment may serve as a basis for Council
recommendations and decisions adopted in accordance with Article 46 of the
Treaty on European Union.